For the plaintiffs-respondents-cross-appellants there was
a brief by Lynn R. Laufenberg and Laufenberg & Hoefle, S.C.,
Milwaukee, and Scott Lawrence and Lawrence & Des Rochers, S.C.,
St. Nazianz, and oral argument by Lynn R. Laufenberg and Scott
Lawrence.

An amicus curiae brief was filed by H. Dale Peterson,
Heather L. Boudreau, and Stroud, Willink & Howard, LLC, Madison,
on behalf of the Wisconsin Farm Bureau Federation, Cooperative, the National
Farmers Organization, and the Dairy Business Association.

An amicus curiae brief was filed by David A. Ludwig,
Madison, on behalf of the Public Service Commission of Wisconsin.

An amicus curiae brief was filed by William C.
Gleisner, III, and Law Offices of Williams C. Gleisner, III, Milwaukee,
and Rhonda L. Lanford and Habush Habush & Rottier, S.C., Madison,
on behalf of the Wisconsin Academy of Trial Lawyers.

An amicus curiae brief was filed by George Burnett,
Sara Ramaker, and Liebmann, Conway, Olejniczak & Jerry, S.C., Green
Bay, on behalf of the Six Districts of the Granton Amish Community and the Spencer
Amish Church.

2003 WI 64

notice

This opinion is subject to
further editing and modification.The
final version will appear in the bound volume of the official reports.

No.00-2703

(L.C. No.

97 CV 144)

STATE OF WISCONSIN:

IN SUPREME COURT

Allan
Hoffmann and Beverly Hoffmann,

Plaintiffs-Respondents-Cross-

Appellants,

v.

Wisconsin
Electric Power Company,

Defendant-Appellant-Cross-

Respondent-Petitioner.

FILED

JUN 25, 2003

Cornelia G. Clark

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals.Affirmed in part, reversed in part, and
cause remanded.

¶1WILLIAM A. BABLITCH, J. Wisconsin Electric Power
Company (WEPCO) petitioned this court for review of an unpublished decision of
the court of appeals,[1]
which upheld a jury's verdict in favor of Wisconsin farmers, Allan and Beverly
Hoffmann.At issue is whether there was
sufficient evidence to support the jury's verdict that the Hoffmanns' dairy
herd was harmed by electrical current resulting from a deteriorated WEPCO
electrical distribution cable.Because
we conclude that there was ample evidence to support the jury's finding that
WEPCO's deteriorated electrical distribution cable was a cause of damage to the
Hoffmanns' dairy herd, we uphold the court of appeals' decision on this
issue.WEPCO also petitioned this court
to review whether the circuit court erroneously exercised its discretion by
ordering a specific method of abatement that was requested by the Hoffmanns.We conclude that the circuit court
erroneously exercised its discretion in ordering the specific electrical system
requested by the Hoffmanns because the court (1) relied on the improper factor
that the Hoffmanns were the "victors" of the lawsuit and (2) failed
to take into account relevant factors, such as the safety and reliability of
the system ordered and whether the system complies with Wisconsin's electrical
code.Accordingly, we reverse that part
of the court of appeals' decision that upheld the circuit court's abatement
order, and remand to the circuit court for Waupaca County to properly exercise
its discretion in ordering a method of abatement.

I.FACTS AND PROCEDURAL HISTORY

¶2The Hoffmanns have operated a dairy farm in New London, Wisconsin
since 1977.That same year, WEPCO installed
an underground, bare-concentric, multi-grounded electrical distribution cable
along a road that is adjacent to the Hoffmanns' farm.From 1977 to 1987, the Hoffmanns built a dairy herd, which was
generally healthy and productive.However, they felt their milk production was not as high as it should
have been, based on state averages for milk production.

¶3In the late 1980s, the Hoffmanns noticed that their cows were
behaving erratically, kicking at milkers, acting listless and lame, and failing
to eat and drink normally.The herd
also had a high calf mortality rate.The Hoffmanns worked to address the problems with their dairy herd,
including installing a new free stall barn in 1994, and working closely with
their herd veterinarian and nutritionist.The Hoffmanns made a number of management decisions over the years to
improve the herd's health and milk production, but despite all their efforts,
there was no significant change, and milk production continued to significantly
drop.After examining possible causes
for their problems with the herd, including facilities, disease, nutrition,
reproduction, and udder health, the Hoffmanns' veterinarian concluded that the
only factor that had not been eliminated was electricity.

¶4In response, the Hoffmanns made several electrical changes on
their farm from 1988 to 1999.One of
the changes involved installing an equipotential plane in their newly
constructed milking parlor in order to deal with potential "stray
voltage.""Stray
voltage" has been defined by the Wisconsin Public Service Commission (PSC)
as voltage that is present across points (generally grounded metal objects), in
which an electrical current is produced when an animal simultaneously contacts
two conductive points to complete a circuit, which allows an electrical current
to flow.[2]While an equipotential plane may reduce
traditional stray voltage as measured by "cow contact points,"[3]
there was testimony at trial that equipotential planes do not reduce all
electrical currents in an animal's environment and may actually increase the
ground current beneath the animal.The
potential effect of ground current was discussed by expert witnesses for the
Hoffmanns, who differentiated between traditional stray voltage and
"non-traditional" stray voltage, such as ground current."Ground currents" are currents
that are associated with the grounding system of an electrical utility's
primary distribution system and an individual's secondary system (e.g. barn
wiring).[4]Once electrical currents leave a grounding
system and go into the earth, they are referred to as "earth
currents."[5]According to the Hoffmanns, in addition to
traditional stray voltage, "non-traditional" stray voltage, such as
ground or earth currents, can be harmful to animals.

¶5In an attempt to divert a portion of the ground current, the
Hoffmanns had a ring of copper wire buried around the dairy complex.After installing the copper wire, calf
mortality improved, but milk production remained erratic.The Hoffmanns also contacted WEPCO to test
for stray voltage on their farm.In
November 1995, WEPCO tested for traditional stray voltage on the Hoffmann farm,
in accordance with the PSC's protocol as set forth in Docket 106, and concluded
that the current detected was below the PSC's "level of
concern."The "level of
concern" has been defined by the PSC as the level above which corrective
or mitigative action should be taken if production or behavioral problems
exist, which is one milliampere in the "cow contact" areas.[6]One of the Hoffmanns' expert witnesses
testified that the WEPCO engineer who visited the farm told him that WEPCO
would also test for "non-traditional" stray voltage; however, this
testing was never conducted by WEPCO.

¶6In an unrelated testing, WEPCO examined the underground,
bare-concentric, multi-grounded electrical distribution cable that served the
Hoffmanns' farm, as part of a developmental test protocol for corrosion.The cable was found to have deteriorated
more rapidly than expected due to corrosion and had a bad splice, which was
replaced.According to the trial
testimony, there was no way to predict future deterioration of the cable and
only follow-up testing could confirm whether the cable was still performing in
an acceptable manner.WEPCO refused to
remove and replace the bare-concentric cable, instead favoring the less
expensive option of testing and mitigation.WEPCO further refused to re-test the cable until shortly before trial,
and at the Hoffmanns' expense.Upon
re-testing, the cable showed further deterioration.The expert witnesses for WEPCO testified that the deterioration
of the cable did not present any significant threat of traditional stray
voltage.However, the expert witnesses
for the Hoffmanns contended that the deteriorating cable led to increased
"non-traditional" stray voltage that adversely affected the dairy
herd.

¶7In June 1997, the Hoffmanns sued WEPCO on theories of negligence
and nuisance, alleging that WEPCO's electrical distribution system was causing
excessive amounts of electrical current to flow through their farm, which was
damaging the health and productivity of their livestock.The Hoffmanns sought damages and injunctive
relief in the Circuit Court for Waupaca County, Philip M. Kirk, Judge.After a month-long trial, the jury found in
favor of the Hoffmanns on both the negligence and nuisance counts and assessed
damages in the amount of $1,241,000.[7]The circuit court entered a money judgment
based on the jury's verdict and entered an abatement order requiring WEPCO to
replace the underground, bare-concentric, multi-grounded electrical
distribution cable with an overhead, ungrounded delta system.WEPCO appealed both the money judgment and
the abatement order.The circuit court
refused to grant a stay of execution of the money judgment, but it stayed
enforcement of the abatement order, pending appellate review.

¶8In an unpublished per curiam opinion, the court of appeals
affirmed both the money judgment and the abatement order of the circuit
court.The court of appeals affirmed
the circuit court's decision to uphold the jury's verdict because the verdict
was supported by the record, and the court affirmed the abatement order because
it was within the discretion of the circuit court.WEPCO petitioned this court to review whether the jury's verdict
should be upheld and whether the circuit court erroneously exercised its
discretion by ordering a method of abatement specifically requested by the
Hoffmanns.This court granted WEPCO's
petition for review on June 11, 2002.

II.STANDARD OF REVIEW

¶9Appellate review of a jury's verdict is very limited, narrow, and
circumscribed.See, e.g.,
Morden v. Cont'l AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611
N.W.2d 659.This court must
sustain a jury verdict if there is any credible evidence to support the verdict.Id.; Meurer v. ITT Gen. Controls,
90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979); seealso
Wis. Stat. § 805.14 (2001-02).[8]This court views the evidence in the light
most favorable to a jury's verdict and must sustain the verdict if there is any
credible evidence in the record to support it, regardless of whether there is
evidence to support a different verdict.Meurer, 90 Wis. 2d at 450-51.In addition, the credibility of witnesses and the weight given to
their testimony is for the judgment of the jury, not an appellate court.Morden, 235 Wis. 2d 325,
¶39.Moreover, special deference is
afforded to a jury determination that has been upheld by the circuit court.Kuklinski v. Rodriguez, 203
Wis. 2d 324, 331, 552 N.W.2d 869 (Ct. App. 1996).This court will uphold a jury verdict even
if it is contradicted by evidence that is stronger and more convincing.Morden, 235 Wis. 2d 325,
¶39; Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365,
390, 541 N.W.2d 753 (1995).Therefore, this court will not upset a jury verdict unless there is such
a complete failure of proof that the verdict must have been based on speculation.Coryell v. Connecticut, 88
Wis. 2d 310, 315, 276 N.W.2d 723 (1979).

¶11At the outset, we briefly address WEPCO's contention that the PSC's
findings have the force and effect of law, having the same status as statutes
enacted by the legislature.WEPCO
essentially argues that pursuant to its authority underWis. Stat. § 196.857,[9]
the cow contacts protocol, as established by the PSC in Docket 106, is the only
valid measurement of stray voltage and its effect on cows.According to the PSC's cow contacts
protocol, a cow cannot be harmed by stray voltage if the electrical current
measures less than one milliampere.Thus, WEPCO contends that without this necessary element of causation,
the Hoffmanns cannot prevail.

[A] safety statute merely establishes a minimum
standard of care and the conduct, even though sanctioned or in conformity with
the statute, is not thereby necessarily relieved of conforming to the
common-law requirements of ordinary care.In any event the establishment of a statutory definition of negligence
per se does not thereby result in a preemption of the entire negligence
question.There remains the question of
possible common-law negligence.

¶13Furthermore, it is well-recognized that a "statute does not
change the common law unless the legislative purpose to do so is clearly
expressed in the language of the statute.To accomplish a change in the common law, the language of the statute
must be clear, unambiguous, and peremptory."Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶25,
244 Wis. 2d 758, 628 N.W.2d 833 (citations omitted).Nowhere in the language of chapter 196 of
the Wisconsin Statutes is common-law negligence, with respect to stray voltage,
changed or altered.In fact, such a
change has been specifically considered and was rejected.In Wisconsin's initial budget bill for
2001-2002, a provision was included that would have changed the standards for
civil liability with respect to stray voltage.The bill proposed creating a statute, providing that "[a] public
utility is immune from liability for any damage caused by or resulting from
stray voltage contributed by the public utility if that stray voltage is below
the level of concern established by the public service
commission . . . ."2001 S.B. 55, § 3866.However, after severe public criticism, the provision was withdrawn and
was never passed into law.[10]

¶14Based on the above, we must decline WEPCO's invitation to hold that
it cannot be liable to the Hoffmanns if there are no cow contact measurements
of more than one milliampere because the PSC's findings have the force and
effect of law.Moreover, even if WEPCO
is correct, the Hoffmanns presented an alternative theory at trial: that
non-traditional stray voltage was harming their dairy herd and that traditional
stray voltage is not the only kind of electrical current that can harm animals.The jury believed the case presented by the
Hoffmanns that non-traditional stray voltage was a cause of the damage to their
dairy herd.Therefore, whether the
PSC's findings regarding cow contact measurements have the force and effect of
law is not dispositive in this case since these findings only deal with
traditional stray voltage, not non-traditional stray voltage.[11]Accordingly, our inquiry focuses on the
sufficiency of the evidence for the jury's verdict that non-traditional stray
voltage was a cause of the damages sustained by the Hoffmanns.Specifically, we examine whether there is
any credible evidence to support the verdict.Morden, 235 Wis. 2d 325, ¶38.

A.Sufficiency of Evidence: Negligence and Nuisance

¶15The jury found that WEPCO was negligent in providing electrical
service to the Hoffmann farm and that its distribution of electricity to the
farm constituted a nuisance.The jury
found that WEPCO's negligence and the nuisance were each a cause of the damages
sustained by the Hoffmanns.[12]It is undisputed that the Hoffmanns were
having problems with the health and milk production of their dairy herd.Rather, the point of contention between
WEPCO and the Hoffmanns is whether WEPCO's delivery of electricity to the
Hoffmann farm was a cause of these problems.

¶16Both WEPCO and the Hoffmanns produced various expert witnesses who
testified regarding the effect of electricity on the health and milk production
of dairy cows.In Wisconsin, a witness
who is qualified as an expert by knowledge, skill, experience, training or
education may give his or her expert opinion if his or her scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or determine a fact in issue.See Wis. Stat. § 907.02.In cases where there is conflicting expert
testimony, it is up to the jury, as the trier of fact, to determine weight and
credibility.Schultz v. State,
87 Wis. 2d 167, 173, 274 N.W.2d 614 (1979).As Judge Kirk commented in his decision on
motions after verdict, the jury determines the weight of expert testimony and,
in this case, the jury chose the Hoffmanns' experts.

¶17During the course of the trial, the Hoffmanns and their witnesses
testified that non-traditional stray voltage, or ground currents, resulting from
WEPCO's deteriorated, underground, bare-concentric electrical distribution
cable, was a cause of the problems with the Hoffmanns' dairy herd.The PSC made findings in Dockets 106 and 115[13]
that dealt with the effect of traditional stray voltage on cows; however, in
Docket 108, the findings of the PSC were inconclusive with respect to the
effect of ground currents or non-traditional stray voltage on cows.Although the PSC's findings were
inconclusive regarding the effect of ground currents, the Hoffmanns' expert
witnesses testified that there can be negative effects on the health and
performance of dairy cows when electrical currents are flowing through their
environment, regardless of the magnitude of cow contact measurements for
traditional stray voltage.[14]Thus, the Hoffmanns argued that despite
WEPCO's assertions to the contrary, cow contact measurements do not tell the
whole story about the negative impact of electrical current on dairy cows.

¶18The Hoffmanns' expert witnesses also disputed studies introduced at
trial by WEPCO's expert witnesses regarding the effect of electricity on
cows.The Hoffmanns' expert witnesses
testified that there is a significant difference between controlled laboratory
studies, where cows are exposed to electricity for only short periods of time, and
constant, long-term exposure to electrical currents, which is what the
Hoffmanns contended that their cows had experienced.

¶19The Hoffmanns' witnesses further testified that the substantial
electrical current on the Hoffmann farm was due to WEPCO's deteriorated,
underground cable.There was testimony
that in testing the electrical current on the farm using a ground ring, there
was an increase in earth current when the electrical load on WEPCO's
underground line was increased, rather than an increased return current on the
primary neutral, where the current was supposed to be.In contrast, when the same increased load
was placed on a farm generator, there was no increase in earth current.There was also trial testimony that WEPCO
employees had told the Hoffmanns that this particular bare-concentric cable had
been causing problems for years, but WEPCO had not done anything about it.

¶20The Hoffmanns also presented evidence that WEPCO was negligent in
failing to address the problems caused by non-traditional stray voltage on
their farm.The Hoffmanns argued that
WEPCO was negligent when it realized that the underground, bare-concentric
cable was deteriorating at a faster rate than expected due to corrosion, but
yet failed to remove and replace the line.One of the Hoffmanns' expert witnesses, William English, P.E., testified
that this kind of cable was originally thought to last 25-30 years, but that
they have generally only lasted 10-15 years.Moreover, Mr. English testified that this kind of cable is no longer
generally used in the utility industry due to its inadequate performance.Consistent with Mr. English's testimony,
when WEPCO re-tested the cable shortly before trial, it showed further
deterioration from the first time it was tested in 1989.

¶21In addition, the Hoffmanns themselves testified regarding their
extensive efforts to address the problems with their dairy herd, which were
largely to no avail.The Hoffmanns, with
the assistance of their herd veterinarian and nutritionist, explored and
exhausted possible causes of the poor health and reduced milk production of
their cows, and ultimately concluded that electricity was the only source that
had not been eliminated.

¶22Based on all the above, we agree with Judge Kirk that the
"entire evidentiary picture [as] painted by the plaintiffs' experts and
[the] plaintiffs personally . . . is sufficient to sustain
the verdict."As the trier of
fact, the jury determines the weight and credibility of the evidence presented,
and we will uphold their findings if there is any credible evidence to support
their verdict.In light of the
substantial testimony of the Hoffmanns and their witnesses, we conclude that
there was ample evidence for the jury to find that non-traditional stray
voltage resulting from WEPCO's deteriorated, underground, bare-concentric
electrical distribution cable was a cause of damage to the Hoffmanns' dairy
herd.

B.Abatement Order

¶23 A circuit court's decision to
grant an injunction, determine its form, and determine its scope, are within
the broad discretion of the circuit court.City of Wis. Dells v. Dells Fireworks, Inc., 197
Wis. 2d 1, 15, 539 N.W.2d 916 (Ct. App. 1995) (citing Seigel,
163 Wis. 2d at 889-90)).When
a party seeks injunctive relief, a circuit court "exercises its discretion
in deciding whether to grant injunctive relief, and if so, in what form."Forest County v. Goode, 219
Wis. 2d 654, 670, 579 N.W.2d 715 (1998).Thus, it is within a court's discretion to
order a specific method of abatement.See,
e.g., Bubolz v. Dane County, 159 Wis. 2d 284, 296, 464
N.W.2d 67 (Ct. App. 1990) ("Injunctive relief should be tailored to
the necessities of the particular case." (citing Rondeau v. Mosinee
Paper Corp., 422 U.S. 49, 61 (1975))).This court has recognized that in ordering an injunction, a court is not
required to specify the method of abatement, but such specificity may be
ordered in certain cases.

Generally the means whereby the nuisance is to be
abated is left to the direction of the defendant tortfeasor.If the means by which the defendant may
abate the nuisance is immaterial and the court is looking solely to the
end-result, it has been said that the means of abating the nuisance is of no
concern of the court. . . . However, there are situations
in which the balancing of convenience or equities is attempted by the court and
the decree does provide in detail how the nuisance shall be abated or partially
controlled.It is recognized the court
may require the defendant to adopt methods and appliances where their adoption
will avoid the conditions complained of.

¶24In this case, it was disputed whether merely replacing the
underground, multi-grounded cable would effectively abate the nuisance or
whether an overhead delta system is needed.Consequently, it appears that it was proper for the circuit court to
specify the method of abatement in order to satisfactorily address the jury's
finding that the Hoffmanns' cows were being damaged by the deteriorated WEPCO
line.

¶25WEPCO contends that even if the circuit court had the authority to
order a specific method of abatement, the court did not have to order the
method that is most likely to minimize the potential for future stray voltage
problems.Conversely, the Hoffmanns
contend that the circuit court does not have to order the method that is least
costly or most convenient for WEPCO.While both WEPCO and the Hoffmanns raise valid considerations, neither
answers the pertinent issue: whether the circuit court erroneously exercised
its discretion in specifically ordering the ungrounded, overhead delta
system.A circuit court erroneously
exercises its discretion if it (1) fails to consider and make a record of the
factors relevant to its determination; (2) considers clearly irrelevant factors
or improper factors; and (3) clearly gives too much weight to one factor.Sunnyside, 222 Wis. 2d at
471.

¶26Based on our review of the record, we conclude that the circuit
court erroneously exercised its discretion in ordering the ungrounded, overhead
delta system by relying on an improper factor.In the transcript of a motion hearing on September 29, 2000, Judge Kirk
stated:

The reason that I believe that
the plaintiffs are entitled to this relief to the overhead delta system that
they request is that they were the victors of this hard-fought lawsuit.As much as we attempt in our business to
dress things up and doing [sic] justice and doing [sic] equity, there is still
a lot to be said for that philosophy that, "To the victor goes the
spoils."

¶27In ruling on motions after verdict, Judge Kirk reasoned: "I
will grant the injunctive relief as requested by plaintiffs and include in that
order that . . . the type of overhead delta system to be
installed is as the plaintiff has requested . . . ."It was an erroneous exercise of discretion
for the circuit court to order an overhead, ungrounded delta system based on
the fact that the Hoffmanns were the "victors" of the case, and had
specifically requested an overhead, ungrounded delta system.Although we understand and perhaps are even
sympathetic to the circuit court's position, we cannot let it stand.The ordering of an electrical system must be
based on the merits of the system with a record to support that order.

¶28In addition, the circuit court erroneously exercised its discretion
by failing to take into account relevant factors in ordering a method of
abatement.Specifically, there appears
to be uncertainty regarding the safety and reliability of an ungrounded delta
system, as well as whether an ungrounded delta system complies with Wisconsin's
electrical code.See Wis. Admin.
Code ch. PSC 114 (Sept., 1997).

¶29WEPCO claims that these kinds of findings are within the PSC's area
of expertise; therefore, the circuit court erroneously exercised its discretion
by not deferring to the PSC on the issue of abatement.While we conclude that the circuit court did
not properly take into account all of the relevant factors in ordering a specific
method of abatement, we disagree with WEPCO that the circuit court should have
deferred its jurisdiction to the PSC on the abatement issue.Only a court has the authority to grant an
injunction; therefore, it was not an erroneous exercise of discretion for the
circuit court not to defer its jurisdiction to the PSC.See, e.g., Madison Teachers
v. Madison Sch. Dist., 197 Wis. 2d 731, 747, 541 N.W.2d 786
(Ct. App. 1995).Nevertheless, based on
the PSC's knowledge and expertise regarding the distribution of electricity,
the circuit court could have requested and considered information and feedback
from the PSC in making its determination regarding a method of abatement.[15]Specifically, the circuit court could have
taken into account comments from the PSC concerning the safety and reliability
of an ungrounded, overhead delta system and whether such a system complies with
Wisconsin's electrical code.

¶30Consequently, we conclude that remand to the circuit court is
required for the court to properly exercise its discretion by considering the
following relevant factors: (1) the safety and reliability of an overhead,
ungrounded delta system and (2) whether an ungrounded delta system complies
with Wisconsin's electrical code, and if the court deems necessary——requesting
comments from the PSC regarding these factors.

¶31In sum, we conclude that there was sufficient evidence to support
the jury's verdict that WEPCO's deteriorated, underground, bare-concentric
electrical distribution cable was a cause of damage to the Hoffmanns' dairy
herd.We further conclude that remand
to the circuit court is required on the abatement issue for the court to
properly exercise its discretion in ordering a method of abatement.

By the Court.—The decision of the court of
appeals is affirmed in part, reversed in part, and remanded to the circuit court
for Waupaca County for further proceedings consistent with this opinion.

¶32SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring).I join the mandate.I do not
join the opinion because I am concerned about key aspects of the opinion.

¶33First, the majority opinion rejects WEPCO's argument that the
circuit court should have deferred its jurisdiction to the PSC on the abatement
issue.The reason the majority opinion
gives is that "[o]nly a court has the authority to grant an
injunction."[16]The majority opinion cites to Madison
Teachers, Inc. v. Madison Metropolitan School District, 197 Wis. 2d 731,
747, 541 N.W.2d 786 (Ct. App. 1995).

¶34Madison Teachers, however, does not provide support for the
majority opinion's conclusion that the circuit court need not defer to the PSC
on abatement.Madison Teachers
involved a question of the court deferring to Wisconsin Employment Relations
Commission (WERC).Madison Teachers
states only that WERC cannot provide injunctive relief.[17]The basis for the decision in Madison
Teachers is a statute granting courts the power to issue equitable
(injunctive) relief in WERC matters.[18]The statement in Madison Teachers
that "only a court may grant an injunction" is gratuitous, is made
without citation, and probably is no more than a truism (because by definition
an injunction is a court order).

¶35The majority opinion in the present case picks up this sentence from
Madison Teachers relating to WERC and injunctions and apparently equates
WERC with the PSC and "injunction" with "abatement."At least some administrative agencies do,
however, have the power to issue abatement orders.[19]No one disputes the PSC's power to abate.

¶36Second, the majority opinion concludes that the circuit court could
have consulted with the PSC in making its determination regarding the method of
abatement.[20]It offers no authority for this conclusion.
The Commission's amicus brief states that the Commission "is certainly
willing to advise a trial court whenever questions about public safety and
utility systems arise."[21]Administrative agencies have only those
powers conferred by statute.[22]What statute authorizes the PSC, under the
circumstances of this case, to answer questions posed by a circuit court, to
make findings in response to a court's inquiry, or to issue rulings at the
request of a court?

¶37I join the mandate to remand the matter to the circuit court.The majority opinion does not prevent the
circuit court from deferring to the PSC on the abatement issue.

¶38I am authorized to state that Justice ANN WALSH BRADLEY joins this
concurrence.

[2] Public
Service Commission of Wisconsin, Investigation on the Commission's Own Motion
Into the Practices, Policies and Procedures Concerning Stray Voltage for Electric
Distribution Utilities in Wisconsin, Docket #05-EI-106 at 5 (1989) (Docket
106).

[3] "Cow
contact points" are areas where an animal simultaneously accesses two
points of different voltage of a sufficient magnitude, which causes an
objectionable current to flow through the animal.Id. at 8.

[4] Public
Service Commission of Wisconsin, Investigation on the Commission's Own Motion
Into the Practices, Policies and Procedures of Providing Electric Utility
Service as It Relates to the Potential Adverse Effects on Dairy Livestock From
Electromagnetic Fields, Ground Currents, and Direct Currents Associated With
That Service, Docket #05-EI-108 at 3 (1995) (Docket 108).

(1g) Program Elements.(a) The commission shall establish and
administer a stray voltage program.The
program shall focus on regulation, education, inspection and investigation relating
to stray voltage.

(b)The commission shall identify standardized
test procedures check lists and equipment to be used by public utilities to
investigate stray voltage.The
commission may audit the results of investigations.

[12] The
circuit court gave several instructions to the jury, including instructions on
the burden of proof, negligence, nuisance, causation, and damages.The circuit court instructed the jury, in
part:

The burden of proof,
rests upon the party contending that the answer to a question should be
"yes."This burden is to
satisfy you to a reasonable certainty by the greater weight of the credible
evidence that "yes" should be the answer.

Credible evidence is evidence which in the light
of reason and common sense is worthy of your belief.

A person [company]
fails to exercise ordinary care, when, without intending to do any harm, it
does something or fails to do something under circumstances in which a
reasonable person would foresee that by its action or failure to act, it will
subject a person or property to an unreasonable risk of injury or damage.

The cause questions
ask whether there was a causal connection between the negligence of Wisconsin
Electric Power Company and any damages sustained by the Hoffmanns.These questions do not ask about "the
cause" but rather "a cause."The reason for this is that there may be more than one cause of
damage.Before you find that negligence
was a cause of damage, you must find that the negligence was a substantial
factor in producing the damages.

A nuisance is an
unreasonable activity that interferes substantially with another person's
interest in the private use and enjoyment of land.To be a nuisance, an activity must cause significant harm.

If ordinary persons
living in the community would regard the activity in question as substantially
offensive, seriously annoying, or intolerable, then the interference is
significant.

[13] Public
Service Commission of Wisconsin, Investigation on the Commission's Own Motion
Into the Practices, Policies and Procedures Concerning Stray Voltage for
Electric Distribution Utilities in Wisconsin, Docket #05-EI-115 (1996) (Docket
115).

[15] The
electrical code for the State of Wisconsin is issued and administered by the PSC,
along with the department of commerce, division of safety and buildings.Wis. Admin. Code § PSC 114.001(1).In addition, Wis. Admin. Code § PSC
114.002(1) states:

The purpose of this chapter is the practical
safeguarding of persons during the installation, operation or maintenance of
electric supply and communication lines and their associated equipment.This chapter contains minimum provisions
considered necessary for the safety of employees and the public.[However,] [t]his chapter is not intended as
a design specification or an instruction manual.